DO NOT USE THE ENCLOSED SOFTWARE SERVICE UNTIL YOU (“CLIENT”) READ THIS DOCUMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SDL PLC FOR AND ON BEHALF OF ITS AFFILIATES ("SDL"). BY TYPING IN YOUR SOFTWARE ENCRYPTION CODE OR OTHERWISE ACTIVATING, ACCEPTING, ACCESSING OR USING THE SOFTWARE SERVICE AND DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE") PROVIDED TO YOU BY SDL IN RESPONSE TO AN ORDER FORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT., IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. SOFTWARE LICENSE QUANTITIES, SOFTWARE DESCRIPTIONS, PURCHASED OPTIONS AND NUMBER OF USER(S) WILL BE DEFINED IN AN ORDER FORM OR OTHER VALID FORM OF AGREEMENT ACKNOWLEDGED IN WRITING BY SDL OR THE PARTY WHO PROVIDED THIS SOFTWARE TO YOU ("ORDER FORM"). IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS, OR USE THE SOFTWARE SERVICE.
SDL plc is the provider of the website and all linked pages owned and operated by SDL (the "Site"), and other SDL branded or co-branded websites and API (including sub-domains, international versions, widgets and mobile versions, as applicable) now existing or later developed (together with the Site, the "Service", as further defined below).
The parties agree as follows:
1.1. “Affiliates” means an entity controlled by either party. The word “control” shall, in the context of a corporation, mean direct beneficial ownership of at least fifty per cent (50%) of the shares entitled to vote for members of the Board of Directors of such corporation, and, in the context of any other business entity, shall mean the right to exercise similar management and control such entity.
1.2. “Authorized Users” has the meaning set forth in the relevant Order Form.
1.3. “Content” means any information or material that is provided to SDL in connection with Client’s use of the Service, including but not limited to, files, pages, data, works such as video clips, audio clips, metatags or images.
1.4. “Documentation” means the manuals and other technical and functional documentation provided by SDL to Client for use with the Service.
1.5. “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country which is a party to the Berne Convention.
1.6. “Subscription Fee” means the fee for the Service as set forth in the applicable Order Form.
1.7. “Order Form” means the Order Form for Services entered into by the parties and referencing this Agreement.
1.8. “Service” means the products and support services that are ordered by Client under an Order Form and made available on-line by SDL from time to time.
1.9. “Term” has the meaning set forth in the relevant Order Form.
2.1 . Copy and Use Terms.
a. Service Entitlement. The access and use of the Service is conditional upon SDL's receipt of full payment as per the requirements of the license purchased by Client. Client acknowledges that Client’s right to use any Service under this Agreement is subject to the terms of this Agreement.
b. Term. The right to receive the Service is effective for the time period for which Client has purchased such Services ("Term") in accordance with the Order Form, unless this Agreement is terminated otherwise in accordance with the terms provided hereunder.
c. Restrictions. Subject to the terms and conditions of this Agreement, SDL grants to Client a non-exclusive, non-transferable, non-sublicensable, limited license to use the Service, limited to the terms set forth in the applicable Order Form, and only for Client’s internal use. Client may not, nor allow any third party to: (i) decompile, disassemble or reverse engineer the Service or any Software that may be provided thereunder, except to the extent expressly permitted by law and subject to the prior written approval of SDL; (ii) remove, modify, obscure and/or otherwise deface any product identification or proprietary rights notices of the Service, Software or Documentation; (iii) transfer, lease, resell for profit, distribute, lend or otherwise grant any rights in the Service or any Software in any form to any other party in whole or in part that may be provided thereunder, including without limitation, processing services to other parties for commercial or for timesharing , rental, sharing arrangements or for service bureau purposes; (iv) modify or create derivative works of the Service or any Software in whole or in part that may be provided thereunder; or (v) otherwise use, copy, adapt or distribute the Service or any Software that may be provided thereunder except as expressly provided herein. Client shall not transmit any Content that Client has reason to believe is infringing, obscene, threatening, libelous or otherwise unlawful or tortuous, including material harmful to children or violative of third-party privacy rights, and Client shall indemnify and defend SDL from and against any breach of the foregoing restriction.
2.2 Subscriptions. Unless otherwise provided in the applicable Order Form, Services are purchased as subscriptions and shall be available to Client in accordance with the terms of the relevant Order Form.
2.3 Limited Rights. Client’s rights in the Service will be limited to those expressly granted in this Agreement and in the applicable Order Form. SDL reserves all rights and licenses in and to the Service not expressly granted to Client under this Agreement.
2.4 Client’s License Grant. During the Term of the relevant Order Form, Client grants to SDL and its Affiliates non-exclusive, worldwide, royalty-free license to use, copy, transmit, sublicense, store and display the Content solely and exclusively to the extent necessary for SDL to provide the Services to Client and to enforce its rights under this Agreement.
2.5 Ownership. (a) Client retains ownership and Intellectual Property Rights in and to the Content. (b) SDL or its licensors retain all ownership and Intellectual Property Rights to the Services.
2.6 Security Terms and Conditions. Client acknowledges that it is the sole responsibility of the Client that the Content and their use of the Services complies with the Security Terms and Conditions set forth in Section 7.5 and Schedule B.
3.1 Technical Support. SDL will provide Client with on-line and telephone technical support in accordance with the SDL technical support policy.
3.2 Updates and Upgrades. SDL will provide all applicable updates and upgrades under this Agreement.
3.3. First Line Support. Client will provide first-line support to its internal users. This will include the first intake of all questions/remarks regarding the Service.
4.1 Fees. All Subscription Fees will be defined and payable in accordance with the applicable Order Form. SDL reserves the right to change the Subscription Fees upon notice to Client but such changes shall only take effect from the expiry of any agreed Term detailed in a the relevant Order Form. All Subscription Fees will be due and payable within thirty (30) days after the date of SDL’s invoice, and are non-cancelable and non-refundable.
4.2 Interest. Except for any amounts disputed in good faith, all past due amounts will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less. Client will reimburse SDL for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts.
4.3 Taxes. All Subscription Fees set forth in the applicable Order Form are exclusive of any sales, withholding, value-added, or other similar taxes imposed by applicable law that SDL must pay based on the Services (“Taxes”). Client agrees to pay or reimburse SDL for all such relevant taxes, except for taxes based on SDL’s income (which shall be the responsibility of SDL). If SDL has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 4.3, Client will pay that amount unless Client can provide SDL with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4 Reporting. SDL may use any reporting tool of the Service to the extent necessary to derive performance against any limitations on usage provided in the Order Form.
4.5 License Compliance. SDL may track Client’s use of the Service in order to verify compliance with this Agreement.
4.6 Renewals. SDL may increase the Subscription Fee by five per cent (5%) in any subsequent renewal Term.
5.1 Limited Warranty. SDL warrants that, for the Term of the applicable Order Form that the Service will substantially conform in accordance with Documentation. The foregoing warranty shall not apply if the Service has not been properly used at all times in accordance with the Documentation.
5.2 Sole Remedy. As Client’s sole and exclusive remedy and SDL’s entire liability for any breach of the warranty set forth in Section 5.1, SDL will, at its option: (a) promptly correct any Service that fails to meet this warranty; (b) provide Client with a reasonable procedure to circumvent the nonconformity; or (c) refund the Subscription Fees under the relevant Order Form paid by Client for the non-conforming Service.
5.3 Disclaimer. SDL does not warrant that the Service will meet Client’s requirements, that the operation of the Service will be error-free, timely or uninterrupted or that all Service errors will be corrected. EXCEPT AS PROVIDED IN SECTION 5.1, THE SERVICE PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND SDL MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE SERVICE OTHER THAN THAT THE SERVICE WILL CONTINUE TO MEET THE DOCUMENTATION. SDL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. No advice or information, whether oral or written, obtained from SDL or elsewhere will create any warranty not expressly stated in this Agreement.
6.1 Infringement Indemnity. Subject to Client’s compliance with the terms and conditions of this Agreement, SDL will, at its option, defend or settle any action brought against Client to the extent that it is based upon a third party claim that the Service, as provided by SDL to Client under this Agreement and used within the scope of this Agreement, infringes any Intellectual Property Rights, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Client, provided that Client: (a) promptly notifies SDL in writing of the claim; (b) grants SDL sole control of the defense and settlement of the claim; and (c) provides SDL, at SDL’s expense, with all assistance, information and authority reasonably required for the defense or settlement of the claim.
6.2 Injunctions. If Client’s use of any of the Service hereunder is, or in SDL’s opinion is likely to be, enjoined due to the type of claim specified in Section 6.1 above, SDL may, at its sole option and expense: (a) procure for Client the right to continue using such Service under the terms and conditions of this Agreement; (b) replace or modify such Service so that it is non-infringing and substantially equivalent in function to the enjoined Service; or (c) if options (a) and (b) above cannot be accomplished despite SDL’s reasonable efforts, then SDL may terminate Client’s rights and SDL’s obligations hereunder with respect to such Service and refund to Client any portion of the pre-paid, unused Subscription Fee covering the remainder of the Term of the terminated Services.
6.3 Exclusions. Notwithstanding Section 6.1, SDL will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from (a) Client’s operation or use of the Service with equipment, devices, software or data not supplied by SDL, if a claim would not have occurred but for operation or use; (b) Client’s use of the Service other than in accordance with this Agreement or the Documentation; or (c) the Content.
6.4 Sole Remedy. THE PROVISIONS OF THIS SECTION 6 SET FORTH SDL’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
7.1 “Confidential Information” means (a) the Service and Content; (b) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents and equipment) that is either marked “confidential” or “proprietary” or would reasonably be assumed to be confidential based on its content or the context surrounding its disclosure; and (c) the specific terms and pricing set forth in this Agreement.
7.2 Exclusions. Confidential Information does not include information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
7.3 Disclosure Restrictions. Each party will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein and each party will remain directly liable and responsible to the other party and its licensors for any violation by a party or its subcontractors hereunder. Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement: (a) as required under applicable securities regulations; and (b) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
7.4 Marketing Assistance. Client agrees as a part of this Agreement to actively participate in SDL’s Customer Reference Program. Such participation includes use of Client’s logo in SDL marketing materials, press releases or speaking engagements, use of Client’s name in SDL’s regulatory filings, and Client taking calls from prospective SDL customers to share Client’s experiences with SDL’s offering.
7.5 Security and Privacy.
7.5.1 SDL shall maintain up-to-date industry-standard security and privacy controls, which controls shall protect the confidentiality, privacy, integrity and availability of all data provided by and/or belonging to Client or its licensors, including the Content, and unauthorized access to the Service. SDL agrees to report to Client in writing (e-mail) as soon as possible any event that might suggest a security incident (improper use of rights, hacking, viruses, loss or theft of data etc.). In the case of an actual security incident SDL shall report this immediately to Client in writing (or via email to an authorized representative of Client).
8.1 SDL does not exclude or limit liability for: (a) death or personal injury caused by its negligence; or (b) any fraudulent misrepresentation on the part of SDL; or (c) any other liability that cannot be excluded by law.
8.2 Neither party shall be liable to the other for any indirect, special, exemplary, incidental or consequential damage, whether based on contract, tort, strict liability or any other legal theory, howsoever caused and whether such loss or damage was foreseeable, known, foreseen, or the party was advised of the possibility of such damage. SDL’s total cumulative liability shall not exceed the amount of the Subscription Fees paid by the Client for the Service for the relevant Order Form during the preceding twelve (12) months which gave rise to a claim.
9.1 Term. This Agreement will begin on the Effective Date and will remain in effect for the Term specified in the relevant Order Form unless terminated earlier in accordance with the terms of this Agreement. Unless otherwise agreed to in the relevant Order Form, the Order Form will automatically renew for all available offerings at the end of the initial Term (or any renewal Term thereafter) for additional one (1) year periods, unless Client has provided SDL with a written termination notice of its intention not to renew the relevant Order Form and/or Agreement at least sixty (60) days prior to the expiration of the then current Term.
9.2 Termination for Breach. Each party will have the right to terminate this Agreement at any time by giving written notice to the other party if (i) the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof; (ii) the other party repeatedly breaches any terms of this Agreement in such manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement, (iii) if any of the following events occur: (a) the presentation of a petition for winding up (b) is the subject of an order or an effective resolution is passed for winding up; (c) the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect thereof; (d) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking; (e) making a composition with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (f) goes into liquidation; or (g) ceasing, or threatening to cease, to carry on business.
9.3 Effect of Termination. Upon expiration or termination of this Agreement, Client shall discontinue all use of the Service. The Content will be available to Client for twenty-eight (28) days after the termination or expiration.
9.4 Suspension of Service and Acceleration. If any amount owing by Client under this Agreement for Services is thirty (30) or more days overdue, SDL may, without limiting SDL’s rights and remedies, accelerate Client’s unpaid Subscription Fee obligations under the relevant Order Form so that all such obligations become immediately due and payable, and suspend the Service to Client until such amounts are paid in full. SDL will give at least ten (10) days’ prior notice that Client’s account is overdue, in accordance with Section 10.7, before suspending the Service.
9.5 Survival. The rights and obligations of the parties which by their nature extend beyond the expiration or termination of the Agreement shall survive termination or expiry of this Agreement for any reason.
10.1 Assignment. Client will have no right to assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without SDL’s prior written consent (not to be unreasonably withheld). Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
10.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of England and Wales, excluding that body of laws known as conflicts of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the English Courts and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
10.3 Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
10.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
10.5 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
10.6 Rights of Third Parties Except where expressly provided to the contrary, this Agreement is not intended to be for the benefit of, and shall not be enforceable by any person who is not named at the date of this Agreement as a party to it or any person who claims rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise, and neither party can declare itself a trustee for the benefit of a third party.
10.7 Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this Section. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.
10.8 Force Majeure. Neither of the parties shall be obliged to meet any obligations, including any guarantee obligation agreed between the parties, if it is prevented from doing so as a result of force majeure. Force majeure shall include but not limited to: (i) government measures, (ii) electricity failure, (iii) faults affecting the internet, computer network or telecommunication facilities, (iv) war, (v) terrorism, (vi) riot, (vii) acts of God, and (vii) governmental action. If a situation of force majeure lasts for longer than forty-five days, either of the parties shall be entitled to terminate the agreement in writing.
10.9 Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
10.10 Export Control. Client agrees to comply fully with all applicable export laws and regulations of the United States and other jurisdictions to ensure that neither the Service, nor any direct product thereof are exported or re exported in violation of such laws, or used for any purposes prohibited by such laws.
10.11 Government Rights. If the Service is acquired by or on behalf of the United States government, any use, duplication or disclosure of the Service is subject to restrictions set forth in FAR 52.227 19 and DFAR 227.7200, 227.7202 (1-4), as applicable. The Service is "commercial computer software" and is licensed with only "Restricted Rights".
10.12 Entire Agreement. This Agreement, including any schedules hereto, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. Any terms and conditions contained in any purchase order that are inconsistent with or in addition to the terms and conditions of this Agreement will be deemed stricken from such purchase order, unless expressly agreed to in writing by SDL.
10.13 Free or Open Source Software. The Service may include programs or code that are licensed under an Open Source Software ("OSS") license model. OSS programs and code are subject to the terms, conditions and obligations of the applicable OSS license, and are SPECIFICALLY EXCLUDED FROM ALL WARRANTY AND SUPPORT OBLIGATIONS DESCRIBED ELSEWHERE IN THIS AGREEMENT.